Either something is in the water or it’s been a very slow social media news month because there have been a rash of blog entries who think the sky is falling over social media platform terms and conditions. Don’t get me wrong, I love that people are finally reading some of the legal agreements that they accept when using platforms and software; I just take issue with some of their interpretations. I will post a few SoMeLaw Thoughts down the road about the specific blog posts (and if you have one you want me to look at, feel free to post them as a comment here). But before I get into specifics I thought it would be worthwhile to explain the big picture of why terms are long and why non-lawyers get confused reading them.

I made a word cloud of the iTunes Terms and Conditions that you've likely accepted but never read. I figured that was nicer than pasting in all 17,000+ words of the document you didn't read.

Here is the single biggest reason why you see so many blog and other posts that misinterpret terms and conditions: Law is not user-friendly. It has decades or longer of precedent that must be fumbled through; it must take into account rapid changes in technology while being written by processes created centuries ago that were designed to move slowly; it can be simultaneously too detailed and not detailed enough. And lawyers, for the most part, practice law by talking to other lawyers who speak their language (Legalese—it uses a lot of henceforths and semi-colons). So legal documents that approach regular English are not as common as I’d like to see. And when you have these long documents filled with hard-to-understand phrases THAT EVERY ONCE IN A WHILE SHIFT INTO ALL CAPS FOR NO APPARENT REASON BUT IT MUST BE IMPORTANT OR MAYBE THE AUTHOR’S KEYBOARD BROKE OR THEY WERE DARED TO WRITE THE SECTION IN THE STYLE OF “AOL CHAT ROOM” it can make reading, let alone understanding, these documents a difficult exercise.

Yes, there actually are reasons for the ALL CAPS and the lengthy sections and the overly technical Legalese, but good reasons aren’t a substitute for good communication. When a regular consumer is faced with 50+ pages of terms and conditions to install and use iTunes, they typically aren’t going to take the time to read that confusing document when they could just click a button and start listening to Flo-Rida’s “Club Can’t Handle Me” (Put your hands up!).

Don’t get me wrong, customers should read these terms. Their decision not to read the terms but to accept them anyway will go against the customer if the issue comes up in court. But I understand why a user doesn’t read the document. Now add into the mix a social media blogger who does start reading the terms and isn’t used to interpreting these terms or putting them in the proper context and suddenly they see the nightmare world that lawyers live in. And they start telling these scary stories to people who have already accepted these terms, making them even scarier. The lawsuit you may be terrified of is coming from INSIDE YOUR OWN FACEBOOK PROFILE!

Here’s one deep, dark secret about lawyers—we see risk everywhere. I can look at a picture of a man on a sidewalk and come up with a dozen potential lawsuits without batting an eye. And that’s before this hypothetical man crosses the hypothetical street. We lawyers spend years reading the most ludicrous cases you can imagine that involve chain reactions of people jumping onto moving trains, dropping bundles of fireworks that explode, and a concussive wave that tips over a large scale injuring a woman nearby (actual, famous case). It’s our job to see the worst potential outcome and help our clients avoid it.

So when a client comes to an attorney and says “Hey, can you draft up some terms for my business so that we’re protected from lawsuits?” then the lawyer’s mind starts spinning like a rickety travelling carnival ride that was installed without inspection, has no safety restraints in the cars, and is operating at twice the recommended speed. Our minds are now racing to give our clients the best possible defense to a future lawsuit.

That’s an important distinction—giving a defense to a lawsuit rather than preventing a lawsuit. Lawyers know that anyone can be sued by anyone else for anything. The question is whether the lawsuit has merit and will stick. Good terms and conditions will give you plenty of ways to dismiss the lawsuit with as little effort as possible, but you’ll still have to deal with the lawsuit. So that’s why these terms and conditions can run so long—they are trying to arm the company for a war that might come from the land, sea, air, space, other dimension, and in the case of some special litigants, parallel universes where your company is secretly in league with paranormal forces and therefore should pay the plaintiff one billion dollars. Drafting these terms are like packing for a trip when you have no idea if you’re going to Hawaii or Antarctica and you don’t know how long you’ll be gone. Writing good conditions are like writing a paragraph trying to summarize what writing terms and conditions are like—you’ll probably write too much even though you’re just trying to get a few simple points across. See what I mean?

Hopefully this paints the picture for the documents you’ve all clicked through without reading, at least how and why they were developed. The fact that a non-lawyer then misinterprets the document is an unfortunate by-product of the document being written mostly as a legal defense: the standard has slowly moved from whether a customer understands the terms to whether a court will enforce the terms. I believe there is room to move these documents back towards understandability while also maintaining their enforceability—and I think it’s a better result when you succinctly explain what a user is signing up to so they read the document, understand it, and remember it. But that’s a topic for another day.

Given the current environment of long, complex terms and conditions, we can’t be surprised that non-lawyers are misinterpreting these documents. Or even some lawyers. So when you read a blogger’s post about Facebook’s terms and conditions banning certain activity or why you’ll get sued for using Pinterest, take it with a few grains of salt. I’ll address some specific concerns in later posts, but hopefully you can now understand the bigger picture of how these terms and conditions can be misinterpreted. And if there’s a specific post you’d like me to take a look at, post it in the comments below.

Very good article that I just ran across. I have recently become an advocate of a short FAQ-ish preamble to terms and conditions that would explain to the average person what they are agreeing to with respect to the things they actually care about, what content they own, what rights they give you, etc. Of course the back end of this FAQ-ish preamble would be something like, “this is merely a summation of your rights under this agreement and not meant as a definitive statement of them, and any interpretation of your rights under this agreement shall be made with the text below and not this summation.” Hamfisted, but I am writing this quickly. While I don’t think this will prevent some, mainly people with just a bit too much time on their hands, reading the full T&C’s to see if they just bargained away their souls for a few sheckels, I think it will get to the beginning intent of this whole thing. Tell the users, in language THEY can understand, what they are agreeing to.

Interesting point, Bob (and hi, by the way). But putting a preamble on a document that is intended to be understood by both parties is a bit of a cop-out. I understand it could be a good compromise, but even better would be a document that both sides can understand and agree to. Maybe that’s a pipe dream, but maybe not.

The basic issue is that we know we are getting screwed. Every sentence is a way that they are screwed the user. And if does not seem like they are screwing us, that’s even worst! If it sounds reasonable then they are really saying they want our first born baby.
Sneaky high paid lawyer up ageist a 16 year old who just want to play with a toy.
BTW, thanks for your post.

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.